Jones & Anor, R (on the application of) v North Warwickshire Borough Council

Where planning legislation does not prescribe an exhaustive list of relevant considerations, the planning authority decides what matters to consider. That decision must be guided by the statute's policy and objects and is reviewable on conventional Wednesbury grounds.

An alternative development site is generally relevant only in exceptional circumstances. Such circumstances may arise where a desirable development would cause conspicuous adverse effects at the proposed site and an alternative could avoid them. The mere existence of another site which may be more acceptable does not justify refusing permission for development which is itself acceptable in planning terms.

The council granted permission for eight affordable bungalows for elderly people on open land used by local children. Two children obtained an order quashing the permission because the planning committee had proceeded on the basis that it could not consider another council-owned site at Coventry Road.

The council appealed. The principal issue was whether the alternative site was a material consideration, or at least one which the committee was obliged to consider taking into account, under sections 70 and 54(A) of the Town and Country Planning Act 1990.

1. Appeal allowed unanimously. Lord Justice Laws delivered the leading judgment. Mr Justice Blackburne and Lord Justice Aldous agreed. The alternative site was not a relevant planning consideration, and the application for judicial review was dismissed.

2. Where a statute supplies an exhaustive lexicon of relevant considerations, the decision-maker must follow it. Where it supplies no exhaustive lexicon, the decision-maker determines what to consider, guided by the policy and objects of the statute. That choice is reviewable only on conventional Wednesbury principles. The court applied the approach in CREEDNZ Inc v Governor-General [1981] 1 NZLR 172, as approved in In re Findlay [1985] AC 319 HL.

3. Consideration of alternative sites is generally relevant only in exceptional circumstances. It may become necessarily relevant where a desirable development would cause conspicuous adverse effects at the proposed site and an alternative site could avoid those disadvantages. This was a general proposition rather than a fixed rule.

4. The existence of other land which would be more acceptable for planning purposes does not ordinarily justify refusing permission for development which is acceptable on the application site. Alternative-site comparison may become material where there are substantial planning objections, particularly serious public detriments and a pressing need for the development. The principles summarised in Trusthouse Forte Hotels Ltd v Secretary of State for the Environment (1986) 53 P&CR 293 were approved and applied.

5. There were no clear or substantial planning objections to the proposed bungalows. The Coventry Road site had also attracted objections. Its possible availability could not amount to a proper reason for refusing permission at The Green. No reasonable planning authority could therefore have treated it as relevant.

6. The committee's mistaken belief that it was obliged to disregard the alternative site did not affect the legality of the permission. Had the committee considered that site, it would have been bound to reject it as irrelevant. The order of certiorari was set aside, the judicial review application was dismissed, and the claimants' cross-appeal on costs was dismissed. Permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): The council's appeal was allowed unanimously, the quashing order was set aside, and the judicial review application was dismissed. The claimants' costs cross-appeal was dismissed. Permission to appeal to the House of Lords was refused.
2. High Court, Queen's Bench Division, Administrative Court: His Honour Judge Rich QC, sitting as a deputy High Court judge, quashed the planning permission on 19 September 2000. He held that the council had been entitled to consider the alternative site and should have decided whether to do so, but declined to award the claimants their costs.
3. Permission stages: Elias J granted permission to seek judicial review on 22 May 2000. Simon Brown LJ granted the council permission to appeal on 28 November 2000 and the claimants permission to cross-appeal on costs on 23 January 2001.